GUERRERO

V.
BIHIS
Buenaventura,
Bella
mother
A.
Guerrero
of
and
respondent
Resurreccion
probate
Respondent
in
the
Bihis
RTC
opposed
QC.
her
elder
sister's
attested
will
was
as
required
not
executed
by
law;
and
its
attestation
not
of
the
comply
law;
the
with
signature
the
requirements
of
the
testatrix
petitioner
procured
the
and
will
her
through
children
undue
and
improper
Petitioner
appointes
Guerrero
special
was
administratrix.
opposed
Respondent
subsequently
withdrew
her
opposition.
probate
The
of
the
trial
court
denied
Civil
Code
was
not
complied
with
because
"acknowledged"
the
will
was
by
testatrix's
residence
at
No.
40
Kanlaon
before
Atty.
Street,
Quezon
City
commissioned
notary
public
for
Issue:
in
W/N
Caloocan
will
City.
is
valid.
required
by
law
in
connection
with
that
execution
it
of
a
notarial
will
is
notary
public
by
testator
and
the
requirement
witnesses.
is
This
formal
requisites
for
the
validity
of
a
notarial
In
will
other
that
words,
is
not
a
public
by
the
testator
and
the
and
instrumental
cannot
be
witnesses
is
void
accepted
for
probate.
SECTION
jurisdiction.
240.Territorial

The
jurisdiction
public
in
a
with
awill.
notary
the
province.
public
in
The
the
jurisdiction
City
of
Manila
do
any
shall
notarial
possess
act
beyond
authority
to
limits
his
jurisdiction.
of
Article
806
of
the
Civil
Code
was
interdiction
complied
of
with
and
the
was
breached.
Ineluctably,
the
acts
witnesses
of
the
and
testatrix,
Atty.
her
Directo
were
all
completely
void.
the
the
ofnotary
not
SECOND DIVISION

[G.R. No. 46521. October 14, 1939.]

In the matter of the will of the deceased Paulino Diancin. TEOPISTA DOLAR, administratrixappellant, OLIMPIA, RITA, JOSEFINA and ROSARIO DIANCIN, appellants, v. ROMAN CATHOLIC
BISHOP OF JARO, Appellee.
Montinola & Tirol for Appellants.
William E. Greenbaum and Luis Hofilea for Appellee.
SYLLABUS
DESCENT AND DISTRIBUTION, CONJUGAL PROPERTY; OBLIGATORY LEGITIME; LEGACY; FREE THIRD;
USUFRUCT OF THE WIDOW. Unless the widow T. D., the heirs of the deceased by his two marriages, the
representative of the legacy for P8,000 and the creditors of the estate, otherwise come to an agreement, the
partition should be made with the intervention of all the interested parties according to law. All the debts
and administration expenses shall first be paid (section 753 of the Code of Civil Procedure). The conjugal
properties of the first marriage shall be liquidated so as to determine those corresponding to the children
had with the deceased M. D., as her heirs, and those corresponding to the deceased. Likewise, the conjugal
properties of the second marriage shall be liquidated, so as to determine the half corresponding to the
widow T. D. and the other half corresponding to the deceased (article 1426 of the Civil Code). The properties
corresponding to the deceased, acquired during his first and second marriages, constitute his estate, which
should be partitioned among his heirs, namely, his children by his two marriages and his widow T. D.
(articles 931 and 834 of the Civil Code). There being forced heirs, the legacy of P8,000 should be taken from
the free third only, without touching the obligatory legitime (article 813 of the Civil Code), and for this
purpose, the properties to be partitioned should first be divided into three equal parts, two of which
constitute the obligatory legitime, and the other the free third, so as to determine the properties from which
the legacy should be taken. On the other hand, this legacy being by way of usufruct, the heirs may comply
therewith or deliver to the legatee properties equivalent to the free third (article 820, paragraph 3, of the
Civil Code). The fruits of the properties already received or to be received shall answer for the legacy with
respect to one-third thereof only, the remaining two-thirds being those of the heirs (article 813 of the Civil
Code). The legal usufruct of the widow should be taken from the third available for betterment (article 835
of the Civil Code).

DECISION

AVANCEA , C.J. :

Paulino Diancins first wife was Margarita Doctura and Teopista Dolar his second.
By his first marriage he had five children, named Lucas, Guadalupe, Bibiana, Fidel and Tiburcio. Lucas died
leaving three children, named Natividad, Jose and Demetria. Guadalupe also died leaving three children
also, named Natalia, Jesus and Sulpicio Palma. Bibiana, Fidel and Tiburcio are still living.
By his second marriage, he had four children, named Olimpia, Rita, Josefina and Rosario.
He acquired certain properties during his first marriage and still others during his second. He left as will
before he died wherein he sets out all his properties and distributes them among his widow Teopista Dolar
and his heirs by both marriages. He also left a legacy of P8,000 to be spent for the altar of the church under
construction in the Municipality of Damangas, ordering that this be taken from the fruits of all the properties
before they are partitioned among his heirs.
After the commencement of the testamentary proceedings and the appointment therein of Topista Dolar as
judicial administratrix, the latter first filed a project of partition which was not approved because of the
oppositions of certain heirs, and thereafter, on November 30, 1936, filed another project of partition which

was not also approved because of the opposition of the representative of the Church of Dumangas, the
Bishop of Jaro. In disapproving this last project of partition, the Court ordered the administratrix to take
immediate possession of all the properties of the estate and pay from the products thereof the legacy of
P8,000 in favor of the Bishop of Jaro, upon payment of this legacy, to submit another new project of
partition for its arrival. From this resolution the administratrix Teopista Dolar and the heirs of the deceased
by his second marriage, appealed.
We note, first of all, that the last project of partition submitted by the administratrix is not concurred in by
the heirs of the deceased by his first marriage to whom have been allotted their shares of the state
corresponding to them.
In the light of the foregoing facts and the allegations of the parties in this instance, we hold that, unless the
widow Teopista Dolar, the heirs of the deceased by his two marriages, the representatives of the legacy for
P8,000, and the creditors of the state, otherwise come to an agreement. the partition should be made with
the intervention of all the interested parties according to law. All the debts and administration expenses shall
first be paid. (Section 753 of the Code of Civil Procedure). The conjugal properties of the first marriage shall
be liquidated so as to determine those corresponding to the children had with the deceased Margarita
Doctura, as her heirs, and those corresponding to the deceased. Likewise, the conjugal properties of the
second marriage shall be liquidated, so as to determine the half corresponding to the widow Teopista Dolar
and the other half corresponding to the deceased (article 1426 of the Civil Code). The properties
corresponding to the decease(i, acquired during his first and second marriages, constitute his estate, which
should be partitioned among his heirs, namely, his children by his two marriages and his widow Teopista
Dolar (articles 931 and 834 of the Civil Code). There being forced heirs, the legacy of P8,000 should be
taken from the free third only, without touching the obligatory legitime (article 813 of the Civil Code), and
for this purpose, the properties to be partitioned should first be divided into three equal parts, two of which
constitute the obligatory legitime, and the other the free third, so as to determine the properties from which
the legacy should be taken. On the other hand, this legacy being by way of usufruct, the heirs may comply
therewith or deliver to the legatee properties equivalent to the free third (article 820, Paragraph 3, of the
Civil Code). The fruits of the properties already received or to be received shall answer for the legacy with
respect to one-third thereof only, the remaining two-thirds being those of the heirs (article 813 of the Civil
Code). The legal usufruct of the widow should be taken from the third available for betterment (article 835
of the Civil Code).
After the partition is made in accordance with the foregoing, there should be delivered to the heirs the
properties corresponding to them as legitime. As to the free third, the testator not having disposed of its
ownership, it shall belong to all the forced heirs, in equal parts, subject to the legacy as to its fruits.
The appealed resolution is modified in accordance with the foregoing, without special pronouncement as to
the cost. So ordered.
Villa-Real, Imperial, Diaz, Laurel, Concepcion, and Moran, JJ., concur.